No. 95-962
In the Supreme Court of the United States
OCTOBER TERM, 1995
CSX TRANSPORTATION, INC., ET AL., PETITIONERS
v.
JANET FRITSCH, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENTS IN
OPPOSITION
DREW S. DAYS, III
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
JEFFREY P. KEHNE
Attorney
Department of Justice
Washington, D.C. 20530
(202) 514-2217
HENRI F. RUSH
General Counsel
EVELYN G. KITAY
Attorney
Surface Transportation Board
Washington, D.C. 20543
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QUESTIONS PRESENTED
1. Whether the court of appeals properly exercised
jurisdiction over a petition for review of the Inter-
state Commerce Commission's refusal to reopen a
final administrative decision.
2. Whether the court of appeals erred in holding
that a railroad could effectuate an abandonment of a
rail line notwithstanding the Interstate Commerce
Commission's imposition of a public use condition for
a 180-day period.
(I)
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TABLE OF CONTENTS
Page
Opinion below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 2
Argument . . . . 7
Conclusion . . . . 13
TABLE OF AUTHORITIES
Cases:
Federal Crop Insurance Corp. v. Merrill, 332
U.S. 380 (1947) . . . . 8
Friends of Sierra RR v. ICC, 881 F.2d 663 (9th
Cir. 1989), cert. denied, 493 U.S. 1093 (1990) . . . . 9
Hayfield Northern R.R. v. Chicago & N.W.
Transp. Co., 467 U.S. 622 (1984) . . . . 11
ICC v. Brotherhood of Locomotive Engineers,
482 U.S. 270 (1987) . . . . 6, 7, 8, 9, 10
Lyng v. Payne, 476 U.S. 926 (1986) . . . . 8
National Wildlife Federation v. ICC, 850 F.2d
694, (D.C. Cir. 1988) . . . . 4
Preseault v. ICC, 494 U.S. 1 (1990) . . . . 3, 4, 7
Rail Abandonments-Use of Rights-of-Way as Trails,
2 I.C.C.2d 591 (1986) . . . . 10
Statutes and regulations:
ICC Termination Act of 1995, Pub. L. No. 104-88,
109 Stat. 803:
102(a), 109 Stat. 823 (40 U.S.C. 10903) . . . . 2
102(a), 109 Stat. 827 (49 U.S.C. 10905) . . . . 2, 3, 7
204(a), 109 Stat. 941 . . . . 2
204(c) (2), 109 Stat. 942 . . . . 2
National Trails System Act Amendments of 1983,
Pub. L. No. 98-11, 97 Stat. 48:
208, 16 U.S.C. 1247(d) . . . . 2, 3, 12
(III)
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IV
Statutes and regulations-Continued:
Page
28 U.S.C. 2344 . . . . 5, 6
44 U.S.C. 1507 . . . . 9
49 U.S.C. 10906 . . . . 3, 6, 7, 10, 11, 12
49 C.F.R.:
Section 1104.12 (a) . . . . 9
Section 1115.3 . . . . 5
Section 1152.25(a) . . . . 9
Section 1152.29(d) . . . . 12
Miscellaneous:
58 Fed. Reg. 8635 (1993) . . . . 3
H. R. Conf. Rep, No. 422, 104th Cong., 1st Sess.
(1995) . . . . 11
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In the Supreme Court of the United States
OCTOBER TERM, 1995
NO. 95-962
CSX TRANSPORTATION, INC., ET AL., PETITIONERS
v.
JANET FRITSCH, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENTS IN
OPPOSITION
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1a-
13a) is reported at 59 F.3d 248.
JURISDICTION
The judgment of the court of appeals was entered on
July 18, 1995. Petitions for rehearing were denied on
September 18, 1995. Pet. App. 16a-17a. The petition
for a writ of certiorari was filled on December 18, 1995
(a Monday). The jurisdiction of this Court is invoked
under 28 U.S.C. 1254 (1).
(1)
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2
STATEMENT
1. This case concerns a rail abandonment pro-
ceeding before the former Interstate Commerce
Commission (ICC).1 On January 25, 1993, petitioner
CSX Transportation, Inc. (CSX) filed a "notice of
exemption" to abandon an "out-of-service" rail line
that it had operated between Bloomington and Bed-
ford, Indiana. See Pet. App. 18a-20a. On February 1,
1993, petitioner Monroe County Parks and Recrea-
tion Department (Monroe County) notified the ICC
that it was interested in using the line for interim
trail use under Section 208 of the National Trails
System Act Amendments of 1983, Pub. L. No. 98-11,97
Stat. 48, 16 U.S.C. 1247(d) (Trails Act). 2. Monroe
___________________(footnotes)
1 On December 29, 1995, the President signed Pub. L. No.
104-88, 109 Stat. 803, "The ICC Termination Act of 1995"
( ICCTA). That statute abolished the ICC and transferred
many of its rail functions to the Surface Transportation Board
(STB), effective January 1, 1996. However, the new Act does
not affect suits commenced before its effective date where, as
here, the suit involves functions transferred to the STB. See
ICCTA Section 204(c)(2). The functions at issue in this
proceeding, which were formerly performed by the ICC, are
now vested in the STB by virtue of 49 U.S.C. 10903 and 10905,
as reenacted in the ICCTA. Section 204(a) of the ICCTA pro-
vides that all regulations previously issued by the ICC "shall
continue in effect according to their terms until modified, ter-
minated, superseded, set aside, or revoked in accordance with
law by the" STB. This brief will refer to the ICC and to the
provisions of the Interstate Commerce Act as they existed
prior to the enactment of the ICCTA. However, we request
that the records in this case be changed to substitute the STB
for the ICC as a respondent in this proceeding.
2 The Trails Act directs the Commission not to permit aban-
donment where a State, political subdivision, or qualified
private organization is prepared to assume full responsibility
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3
County requested that the ICC impose a public use
condition under 49 U.S.C. 10906 3. to give it additional
time to pursue a trail use agreement with CSX. See
Pet. App. 3a, 41a. On February 16, 1993, the ICC pub-
lished a notice of the abandonment proposal in the
Federal Register. See 58 Fed. Reg. 8635 (1993). The
notice specifically alerted the public that (1) requests
for trail use and/or public use conditions could be
made and (2) environmental, historic preservation,
___________________(footnotes)
for management of such rights-of-way and for any legal
liability arising out of such "interim use" as a trail; that policy
serves "to preserve established railroad rights-of-way for
future reactivation of rail service." 16 U.S.C. 1247(d). Section
1247(d) provides that interim trail use "shall not be treated, for
purposes of any law or rule of law, as an abandonment of the
use of such rights-of-way for railroad purposes." See Preseault
v. ICC, 494 U.S. 1, 6-9 (1990). The Trails Act was not changed
in the ICCTA.
3 Former 49 U.S.C. 10906 (1988) provided in pertinent part:
When the [ICC] finds [that abandonment or discontinuance
is to be permitted], the Commission shall find further
whether the rail properties that are involved in the
proposed abandonment * * * are suitable for use for
public purposes, including highways, other forms of mass
transportation, conservation, energy production or trans-
mission, or recreation, If the Commission finds that the rail
properties proposed to be abandoned are suitable for public
purposes, the properties may be sold, leased, exchanged, or
otherwise disposed of only under conditions provided in the
order of the Commission. The conditions may include a
prohibition on any such disposal for a period of not more
than 180 days after the effective date of the order, unless
the properties have first been offered, on reasonable terms,
for sale for public purposes.
The ICCTA public use provision (Section 10905) is similar
but adds that proposals for "continued rail operations" will take
priority.
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4
public use and/or trail use conditions would be
imposed, where appropriate, in a subsequent decision.
The authority to abandon was scheduled to take effect
in March 1993, unless stayed pending reconsideration.
See Pet. App. 18a-20a.
In a submission dated March 16, 1993, CSX in-
formed the ICC that it had decided not to negotiate a
trail use agreement with Monroe County. On March
18, 1993, the ICC issued a decision (served on March
22), indicating that it was unable to impose a trail use
condition at that time, due to CSX's unwillingness to
consider trail use. See Pet. App. 41a-44a. 4. To permit
additional time for consideration of public use options,
the ICC imposed a 180-day public use condition. Ibid.
On March 23, 1993, CSX wrote to the ICC indicating
that it had "abandoned" the line. See id. at 4a. Never-
theless, CSX and Monroe County negotiated for the
next several months concerning possible use of the
right-of-way as a trail. See id. at 22a-23a. On
September 14, 1993, just before the 180-day period
expired, CSX again wrote to the ICC, stating that it
had reached an agreement with Monroe County for
interim trail use. See id. at 5a. CSX asked the ICC to
reopen the abandonment proceeding and to issue a
Notice of Interim Trail Use (NITU) to permit the
trail use. See id. at 4a-5a. 5.
By decision served on September .27, 1993, the ICC
imposed the trail condition. Pet. App. 21a-24a. In its
___________________(footnotes)
4 Trail conditions may not be imposed without the full
consent of the railroad. See National Wildlife Federation v.
ICC, 850 F.2d 694,699-702 D.C. Cir. 1988).
5 The ICC issues an NITU when a prospective trail user has
requested an interim trail use arrangement and the carrier has
indicated its willingness to negotiate such an arrangement. See
Preseault, 494 U.S. at 7 n. 5.
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5
decision, the ICC found that it retained authority to
impose a trail condition because it had maintained
jurisdiction over the property while the public use
condition was in force. Id. at 23a. No petition for
judicial review of that decision was filed within the
60-day period established by statute for the initiation
of judicial challenges to ICC decisions. 6.
On November 8, 1993, 43 days after service of the
ICC order imposing the trail condition, 18 landowners
(including Victor Oolitic Stone Company, one "of the
petitioners below), purporting to act for themselves
and others similarly situated, moved for administra-
tive reconsideration of the ICC order. Pet. App. 37a-
40a. 7. The motion for reconsideration was untimely
under ICC rules, which allow a maximum of 40 days
for the filing of motions seeking reconsideration of
rail abandonment decisions. 49 C.F.R. 1115.3; see Pet.
App. 6a-7a. The ICC denied reconsideration by deci-
sion issued on March 22, 1994. Id. at 28a-36a. The
landowners then petitioned for review of the March 22
refusal to reopen the proceeding.
2. On review of the refusal to reopen, the court of
appeals reversed the ICC's decision to impose a trail
condition. Pet. App. la-13a. The court first rejected
the interveners' challenge to its jurisdiction. Id. at
6a-9a. The court acknowledged the jurisdictional
___________________(footnotes)
6 Under 28 U.S.C. 2344, a provision of the Hobbs Act, any
"party aggrieved by the final order [of-the ICC or, now, the
STB] may, within 60 days after its entry, file a petition to
review the order in the court of appeals wherein venue lies."
7 The ICC also received a number of letter protests in late
September 1993. Because those letters were not served on
parties to the proceeding and omitted required elements of
motions for reconsideration, they were added to the ICC file as
letter protests. See Pet. App. 25a-27a.
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6
limitation imposed by ICC v. Brotherhood of Locomo-
tive Engineers, 482 U.S. 270 (1987) (Locomotive
Engineers), which held that where a party seeks
reconsideration of a prior agency order on the ground
of "material error," the agency's denial of recon-
sideration is not subject to judicial review. 8. The
court of appeals distinguished Locomotive Engineers
on the ground that the landowners' petition to reopen
the ICC's abandonment decision had been based on
"non-pretextual grounds of new matter or changed
circumstances, and not merely on [allegations of]
material error in the original agency decision." Pet.
App. 8a (citing Locomotive Engineers, 482 U.S. at
281). The court of appeals next considered the land-
owners' challenge to the ICC'S authority to impose a
trail condition based on the agreement reached be-
tween CSX and Monroe County. The court again
found for the landowners, ruling that the ICC's
jurisdiction had ended in March 1993, when CSX
initially claimed to have abandoned the disputed rail
line. The court determined that neither the 180-day
public use condition imposed under 49 U.S.C. 10906
nor any other provision of the ICC's March 18 order
___________________(footnotes)
8 As the court of appeals observed (Pet. App. 6a). "the
petition for review here, filed May 19, 1994, was well outside
the 60-day period established by 28 U.S.C. 2344 for seeking
review of the ICC's September 27, 1993, decision to issue an
NITU. It was, however, filed within 60 days of the Commis-
sion's March 22, 1994, order denying the landowners' motion
for reconsideration.
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7
had limited CSX'S authority to consummate `abandon-
ment. Pet. App. 9a-13a. 9.
ARGUMENT
We agree with petitioners that this case was
wrongly decided by the court of appeals. The court
misapplied this Court's decision in Locomotive
Engineers and misconstrued 49 U.S.C. 10906 (now 49
U.S.C. 10905). Further review of the issues raised
here, however, does not appear warranted at this time.
1. The court of appeals erred in ruling that it had
jurisdiction to review the ICC's decision. 10. This
Court in Locomotive Engineers distinguished be-
tween an agency's denial of a petition to reopen based
upon a claim of " `material error' in the original
agency decision" (which is not judicially reviewable)
and denial of a petition to reopen based upon a claim of
"new evidence or changed circumstances" (which is
subject to judicial review). 482 U.S. at 278-279.
Acknowledging that "the question may be a close
one" (Pet. App. 9a), the court of appeals ruled (id. at
8a) that the landowners presented "new material"
within the meaning of Locomotive Engineers in their
petition for reconsideration. That conclusion was
incorrect. The only argument for reconsideration
presented in the landowners' November 8, 1993,
motion to reconsider concerned the ICC'S allegedly
erroneous assertion of authority to impose a trail
___________________(footnotes)
9 An authorized abandonment, once fully exercised or "con-
summated," removes the line from the national transportation
system. See Preseault, 494 U.S. at 5-6 n. 3.
10 Although the government did not contest the court of
appeals' jurisdiction in its brief to the court of appeals panel,
see Gov't C.A. Br. 1, we now agree with petitioners that the
court lacked jurisdiction.
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8
condition after CSX had informed the ICC that it had
"abandoned its common carrier obligations in the
railroad corridor on or about March 19, 1993." Id. at
38a. Thus, the petition for reconsideration raised
neither new evidence nor changed circumstances; it
simply alleged that the ICC's decision to impose a
trail condition was unlawful at the time it was made.
Under Locomotive Engineers, the petition for review
should therefore have been dismissed.
The court of appeals concluded that "the Commis-
sion was in fact presented with new material accom-
panying the motion to reopen. Specifically, [the land-
owners] asserted before the Commission that they
were denied the opportunity to submit protests,
arguing that CSX's request to reopen the proceeding
was made beyond the Commission's procedural dead-
lines to file protests, and that [the landowners] were
unaware of the filing of the CSX motion." Pet. App.
7a-8a (footnote omitted). Even if we assume that an
interested party's belated awareness that a matter is
before an agency might sometimes constitute "new
material" or "changed circumstances" within the
meaning of Locomotive Engineers, the court of
appeals erred in exercising jurisdiction here. The
ICC's February 16, 1993, Federal Register notice
specifically alerted the interested public that "trail
use\rail banking conditions could be imposed in a later
decision." Pet. App. 20a. 11. The Commission's regula-
___________________(footnotes)
11 It is well settled that publication in the Federal Register
provides legally sufficient notice to all interested or affected
persons, regardless of actual knowledge or hardship resulting
from ignorance. See, e.g., Lyng v. Payne, 476 U.S. 926, 942
(1986) (Federal Register notice adequate to publicize the avail-
ability of certain low interest loans); Federal Crop Insurance
Corp. v. Merrill, 332 U.S. 380, 384-385 (1947) (wheat crop insur-
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9
tions provide that "[interested persons may become
parties to an abandonment or discontinuance pro-
ceeding by filing written comments or- protests with
the Commission." 49 C.F.R. 1152.25(a). Those regu-
lations also require that "[e]very document filed with
the Commission" must be served "upon all parties to
the proceeding." 49 C.F.R. 1104.12(a). Having de-
clined to become parties to the abandonment pro-
ceeding, the landowners should not have been per-
mitted to invoke their belated awareness of CSX's
September 14, 1993, filing as "new material" or a
"changed circumstance."
Even if the belated discovery of the September 14,
1993, filing were deemed to be reasonable, moreover,
the landowners had ample opportunities to protect
their rights. A timely petition for reconsideration
would have tolled the time for seeking judicial review
of the September 27, 1993, NITU itself. 12. See -Locomo-
tive Engineers, 482 U.S. at 279, 284. Alternatively,
the landowners might have sought judicial review
within the 60-day period after the September 27, 1993,
NITU, since the filing of a request for agency recon-
___________________(footnotes)
ance regulations were binding after insured's Federal Register
publication regardless of actual knowledge of the regulations).
Accord 44 U.S.C. 1507 (publication in Federal Register "is
sufficient to give notice of the contents of the document to a
person subject to or affected by it"); Friends of Sierra RR v.
ICC, 881 F.2d 663, 667-668 (9th Cir. 1989), (Federal Register
notice legally sufficient in ICC exempt abandonment pro-
ceeding), cert. denied, 493 U.S. 1093 (1990).
12 The motion for reconsideration stated that the relevant
events "were only recently discovered by the Class of adjacent
property owners," Pet. App. 39a, but did not assert that the in-
formation had been discovered so "recently" as to preclude
timely filing of a petition for reconsideration.
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10
sideration is not a prerequisite to a petition for
judicial review. See id. at 284-285. The need to seek
judicial review of the agency's refusal to reopen arose
only because the landowners failed to exercise either
of those options.
Despite the court of appeals' error, there appears to
be no compelling need for this Court's review at the
present time. The practical effect of the court's error
is likely to be limited. The court of appeals cited and
purported to apply Locomotive Engineers. its mis-
application of Locomotive Engineers was based on its
evaluation of the facts presented to it regarding the
abandonment of this particular railroad line. See Pet.
App. 7a-8a.
2. The court of appeals also erred in holding that
the ICC's imposition of a public use condition under
Section 10906 did not prevent the railroad from aban-
doning the disputed line. Since its enactment in 1976,
Section 10906 has been an important tool in providing
time for interested parties to attempt to acquire rail
rights-of-way for public purposes through arm's
length negotiations. Since 1986, the ICC has inter-
preted Section 10906 to permit it to bar the railroad
from disposing of the right-of-way for up to 180 days,
pending voluntary negotiations for interim trail use. 13.
The court of appeals erred in substituting its own
interpretation of Section 10906 for the reasonable,
long-standing interpretation of the agency charged
with administering the statute.
Contrary to the court of appeals' view, the language
of Section 10906-is broad enough to support the ICC's
___________________(footnotes)
13 Rail Abandonments - Use of Rights-of-Way as Trails,2
I.C.C.2d 591, 609 (1986) (Section 10906 applies to easements as
well as property owned in fee by the railroad).
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11
construction. Under Section 10906, if the ICC
authorizes an abandonment, it must determine
whether the rail properties "are suitable for use for
public purposes, including * * * recreation." If the
ICC determines that use for public purposes maybe
suitable, the ICC has the authority to bar the sale,
lease, exchange, or any other disposition of the rail
properties involved for up to 180 days, unless the
properties have first been offered, on reasonable
terms, for sale for public purposes.
Thus, Section 10906 permits "the ICC to prohibit
any disposal of the rail properties (i. e., to require the
railroad to keep the transportation corridor intact)
for up to 180 days pending negotiations for public
use (including trail or other recreational use). 14.
Nothing in the language of Section 10906 compels
the court of appeals' conclusion that public use con-
ditions cannot forestall legal abandonment of a rail
line where reversionary interests may be involved.
Unlike Hayfield Northern. R.R. v. Chicago & N. W.
Transp Co., 467 U.S. 622, 633-634 (1984), which held `
that the consummation of unconditioned abandon-
ment authority removes the property from the ICC's
control, after which it may be dealt with by state and
local jurisdictions in the same manner as other
property within their borders, the property at issue
___________________(footnotes)
14 Indeed, this is confirmed by the legislative history of the
ICCTA, which explains (H.R. Conf. Rep. No. 422, 104th Cong.,
1st Sess. 181-182 (1995)) (emphasis added):
In replacing former Section 10906, this provision retains
existing agency authority to examine the possibility that a
line proposed for abandonment may be suitable for alterna-
tive public uses. Abandonment may be postponed for up to 6
months to allow for the pursuit of such alternatives.
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12
in this proceeding was the subject of an unexpired
public use condition.
Notwithstanding the defect in the court's con-
struction of Section 10906, we see no compelling need
for further review at this time. The court's ruling,
which is largely fact-bound (see Pet. App. 11a-12a),
does not present an issue of sufficient general
importance to warrant review by this Court at this
point. The impact of the court's ruling likely will be
limited because parties seeking to ensure interim
trail use have an alternative remedy: invoking the
Trails Act during the abandonment proceeding.
Under the regulatory procedures implementing 16
U.S.C. 1247(d), when a prospective trail user requests
an interim trail use arrangement and the carrier
indicates its willingness to negotiate such an ar-
rangement, the ICC (now the STB, see note 1, supra)
issues an NITU. 49 C.F.R. 1152.29(d). When an
NITU is issued, the parties have a 180-day period in
which to negotiate an interim trail use arrangement.
If no agreement is reached, the NITU automatically
con-verts into an effective certificate authorizing
abandonment. In turn, if a trail use agreement is
reached, it is automatically authorized by the NITU.
Moreover, a railroad wishing to consider trail use can
avoid the effect of the court of appeals' decision by
simply refraining from submitting a letter declaring
that it has abandoned the line of railroad. See Pet.
App. 11.
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13
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted.
DREW S. DAYS, III
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
JEFFREY P. KEHNE
Attorney
HENRI F. RUSH
General Counsel
EVELYN G. KITAY
Attorney
Surface Transportation Board
FEBRUARY 1996